AP Phone Records Seizure Challenges Government, Press Relationship

NEW YORK –- In 1971, Max Frankel, then-Washington bureau chief of The New York Times, described how journalists and government officials routinely work behind the scenes to balance national security interests and press freedom.

In a deposition in the Pentagon Papers case, Frankel wrote that a “small and specialized corps of reporters and a few hundred American officials regularly make use of so-called classified, secret, and top secret information and documentation.” That relationship, Frankel wrote, is “cooperative, competitive, antagonistic and arcane.”

Some things haven’t changed since the landmark decision upholding news outlets’ right to publish without government restraint. National security reporters and government officials today discuss -- and, at times, clash over -- issues of secrecy, transparency, and excessive classification of documents. The government intentionally leaks to reporters when it is advantageous to do so and, in other instances, may investigate unsanctioned leaks.

Amid criticism, President Barack Obama spoke Thursday of the need for “balance” and told reporters that “leaks related to national security can put people at risk.” National security reporters’ willingness to engage on several occasions suggests they already understand the risks; major news outlets have held back information numerous times during the Obama years.

Earlier this month, the AP withheld the identities of the CIA’s new director of the National Clandestine Service and outgoing interim director despite acknowledging that the names are “widely known” in Washington intelligence and media circles. The New York Times and Washington Post also withheld the new director’s name, which was tweeted shortly thereafter and published on websites.

So while national security reporters recently listened to and responded to administration arguments, some suggest that the DOJ’s unusually broad and secret subpoena of the AP record indicates the long-running relationship is not a two-way street and that the balance is increasingly tilted in the government’s direction.

'WHY THE HELL SHOULD I GO TO THE GOVERNMENT?'

“We’ve come full circle right back where we were 40 years ago, where the president is mesmerized by classified information and national security -- just as Richard Nixon was,” said James C. Goodale, an attorney who represented The New York Times on the Pentagon Papers case and is the author of the new book, “Fighting for the Press.”

Just because the DOJ can legally obtain journalists’ phone records, Goodale said that’s no way to ensure “good faith dealing” between the government and press. “With respect to its use of subpoena power,” Goodale said of the administration, “I don’t know if we can expect anything rational or fair from them.”

The Washington Post’s Bob Woodward, who’s been on the receiving end of many leaks since the Nixon years, suggested Friday that AP phone records seizure could damage the running dialogue between both sides since the Pentagon Papers ruling.

The DOJ seizure, Woodward said Friday on MSNBC, could “chill the relationship, so reporters are going to say, ‘why the hell should I go to the government, they’re just going to go after my records?'”

Indeed, the AP has acknowledged holding its May 2012 scoop on the CIA thwarting its terrorist plot in Yemen for several days following requests from the White House and CIA. The AP said it only published the story after “officials said those concerns were allayed” and an administration announcement was planned for the following day. Both NBC News and The Washington Post cast doubt this week on Attorney General Eric Holder’s claim Tuesday that the AP's publication of the story “put the American people at risk.”

While the AP approached the government before publishing, the DOJ secretly seized its phone records for 20 lines before approaching the news organization, a departure from the standard practice of notifying the news organization first. The news organization was only informed of the subpoena on May 10, after the records were already obtained.

Bill Keller, a New York Times columnist and the paper’s former executive editor, told HuffPost that “a kind of set of informal protocols” has developed over the years that relies upon “mutual respect” between the press and government, each with their own interests. The AP records seizure, he added, “potentially damages that.”

Still, Keller -- who drew the ire of the Bush administration for publishing a story on the National Security Agency’s warrantless wiretapping program -- said he thinks "responsible news organizations, in spite of this, are going to go to the government” before publishing classified or sensitive information.

Doug Frantz, The Washington Post’s national security editor, told HuffPost that he doesn’t expect the AP seizure to change how the paper deals with the government on such matters. “Every mainstream press organization tries to behave responsibly and weigh the risks with the public’s right to know,” he said.

Jonathan Landay, a top national security reporter for the McClatchy newspaper chain who used classified documents for an April report on civilian casualties in drone strikes, told HuffPost that he’s “not in the business of negotiating at all with the government,” but will discuss sensitive matters with officials prior to publication.

"It’s our responsibility to consider the potential national security implications of what we’re publishing," said Landay, who acknowledged holding back some details in the drone story.

Landay noted that a major problem when it comes to transparency is the government's over-classification of documents.

“My problem is that the government operates from this worst-case scenario position where you can’t disclose anything because anything you disclose is going to jeopardize national security,” Landay said.

'SERIOUS REPORTERS WANT TO DO THE RIGHT THING'

Tommy Vietor, a former national security council spokesman in the Obama White House, said he’s sympathetic to journalists’ frustrations over requests to hold back information or essentially being told by government officials to “trust us.”

But Vietor said that his job in the White House “was about protecting sources and methods” and “mitigating the risks to keep our soldiers safe, to make sure the intelligence teams could do their job.” Vietor said reporters would call almost every day “with knowledge of a sensitive or classified matter.”

Many discussions about national security risks don’t go beyond the reporter-spokesman level, but Vietor noted that other instances included higher-level officials and top editors. Vietor said the “single most impressive experience” he had was when Dean Baquet, then-Washington bureau chief of The New York Times and now managing editor, “came into the White House to tell us what was in the WikiLeaks documents.”

“Dean dispassionately laid out what was there, what they were interested in, but also made clear they had a strong understanding there were necessary steps to mitigate" potential threats in the documents, said Vietor. The 2010 exchange, he recalled, was “a model for how these sorts of issues can be managed.” (Baquet said at the time that the White House praised the Times' handling of the huge cache of classified documents).

Vietor said he doesn’t expect the AP records seizure to stop communication between news organizations and the government over national security.

“I think serious editors want to do the right thing,” he said. “Serious reporters want to do the right thing and they’re always willing to balance national security concerns with the need for more transparency.”